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ib B. Bindal Vs. Banarsi Das Gupta - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtDelhi High Court
Decided On
Case NumberRegular Appeal No. 36 of 1981 and First Appeal No. 97 of 1979
Judge
Reported inILR1982Delhi117
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10
Appellantib B. Bindal
RespondentBanarsi Das Gupta
Advocates: Shanti Bhushan,; G.L. Rawal,; Shanti Bhushan and;
Cases ReferredBanarsi Dass vs. Panna Lal
Excerpt:
civil procedure code - order 1 rule 10 & order 39 rule 1 and 2--in a matter, where all the coparceners have an interest, all of them are necessary parties--section 151--review--when possible contract act--voidable and void contracts--discussed and distinguished. ; the appellant obtained a temporary injunction from the additional district judge, delhi, restraining the respondent from interfering in the management of the property known as modern industries till the partition of the hindu undivided family and an order restraining the central bank of india, respondent no. 2, from stopping the operation of the bank account of modern industries. the respondent no. 1 filed an appeal against the order of the addl. district judge in the delhi high court. this court accepted the appeal and.....g.r. luthra, j.(1) on april 17, 1979 shri b. b. gupta, additional district judge, delhi confirmed a temporary injunction issued in favor of shri brij bhushan bindal applicant (hereinafter referred to as the plaintiff) restraining seth banarsi das gupta, opposite party no. 1 (hereinafter referred to as defendant no. 1) from interfering in the management .of the property known as modern industries situated at sahibabad till partition of hindu undivided properties and restraining central bank of india, shahdra delhi opposite party no. 2 (hereinafter referred to as defendant no. 2) from stopping the operation of bank account of modern industries. defendant no. 1 brought an appeal against the said order which was accepted by me on april 29, 1981 and the injunction issued by the learned.....
Judgment:

G.R. Luthra, J.

(1) On April 17, 1979 Shri B. B. Gupta, Additional District Judge, Delhi confirmed a temporary injunction issued in favor of Shri Brij Bhushan Bindal applicant (hereinafter referred to as the plaintiff) restraining Seth Banarsi Das Gupta, opposite party No. 1 (hereinafter referred to as defendant No. 1) from interfering in the management .of the property known as modern Industries situated at Sahibabad till partition of Hindu Undivided Properties and restraining Central Bank of India, Shahdra Delhi opposite party No. 2 (hereinafter referred to as defendant No. 2) from stopping the operation of bank account of Modern Industries. Defendant No. 1 brought an appeal against the said order which was accepted by me on April 29, 1981 and the injunction issued by the learned Additional District Judge was vacated. On May 5, 1981 plaintiff brought the present petition (being R. A. 36 of 1981) for reviewing my aforesaid judgment dated April 29, 1981 on the basis that there were errors apparent on the face of the record. By way of amendment (which was allowed on July 14, 1981) some further grounds for review were added.

(2) Plaintiff is the son of defendant No. 1. Defendant No. 1. the plaintiff and other sons of defendant No. 1, namely Seth Jatender Lal, Seth Satender Lal and Shri Mohan Lal Gupta formed Hindu Undivided family (hereinafter referred to as the HUF). That HUf is carrying on a number of businesses which are Modern Industries at Sahibabad, Jaswant Sugar Mills Ltd. at Meerut, S. B. Sugar Mills, Bijnore and Mohan Orchards, Meeduwala Tehsil Majibabad District Bijnore. The dispute is about Modern Industries which is carrying on the manufacturer of Railway Wagons, Steel re-rollers and steel forgings, industrial oxygen gases etc. If was established somewhere in 1940.

(3) The affairs of Modem Industries are being managed by the plaintiff according to whomhe is doing so under a family arrangement entered into between him, his brothers and defendant No. 1. It is alleged by the plaintiff that that family arrangement entries him to carry on the aforesaid business till his life time. Assertion f the plaintiff further is that the family arrangement provided that business of Jaswant Sugar Mills Ltd. Meerut in which HUf has 80 per cent share as well as S. B. Sugar Milk at Bijnore should be managed by defendant No. l, that Seth Mohan Lal Gupta was appointed Administrative Officer of the aforesaid Mills while Seth Jatender Lal Was given all rights of managing Mohan Orchards. According to the plaintiff Satender Lal is not considered to active for medical reasons and, thereforee. he was not not given any management of any particular business but he has Been enjoying all rights and interests as member of the HUF.

(4) Further case of the plaintiff is as follows. Under the aforesaid family arrangement he started management from the year 1953-54 and has been describing himself as Managing Proprietor of Modern Industries. The assets of the said business prior to 1956 were about Rs. 8,61,000.00 but due to the efficient handling, the business made good profits and on June 30, 1977 the assets had risen to the tune of Rs. 98,08,136 -. Due to mismanagement on the part of the defendant No. 1, and Seth Mohan Lal the Sugar Mills at Meerut was not properly functioning on account of which U. P. Government took over the same. Similarly there was mis-management in the affairs of the S. B. Sugar Mills Bijnor which was also taken over iff the Government somewhere in the year 1970-71. 'The Modern Orchards were also not managed properly and for the reasons better known to the other members of the H. U. F. the same was mortgaged.

(5) On July 30, 1956 defendant No. I styling himself as proprietor of the Modem Industries executed a Power of attorney in favor of plaintiff with a view to efficient handling of the bank accounts and the litigation with third parties. On November 16, 1978 defendant No. 1 sent a letter to the Central Bank of India, defendant No. 2 to stop the operation of the bank account of Modern Industries Sahibabad under the signatures of the plaintiff. The plaintiff contacted the bank who conveyed the instructions received from defendant No. 1. The plaintiff pleaded with the Bank that the aforesaid directions were uncased for and had no force in the eye of law but defendant No. 2 stated that it did not want to involve in any sort of dispute between the former and defendant No. 1. Then plaintiff approached defendant No. I but the latter was not prepared to listen to any request and insisted upon the illegality as embodied in the letter dated 13-11-1978. The plaintiff challenges that act of defendant No. I as illegal. He, thereforee, brought a suit for issue of a perpetual injunction restraining the defendant No. 1 from interfering or otherwise in any manner not permitting the plaintiff to continue the management of Modern Industries and operation of his accounts with defendant No. 2. He also sought perpetual injunction against defendant No. 2 from stopping the operation of the bank account with it.

(6) Along with the suit an application under Order'39 roles 1&2 and Section 151 Civil Procedure Code. was given for issue of a temporary injunction restraining the defendant No. I from taking any steps for Stopping bank operation of Modern Industries with defendant No. 2 or from interfering in the management of the said business and also restraining defendant No. 2 from stopping the plaintiff from operating upon the bank account of the said business.

(7) Defendant No. 1 contested the suit as well as application. He denied that the management of Modern Industries was handed over to the plaintiff on account of any family arrangement or family settlement. He stated that he was Karta of the H.U.F. Known as Seth Banarsi Dass Gupta and used to look after all the interests and businesses of H. U. F. He explained that in order to get assistance in the management and work of H.U.F. he required the other coparceners to help him in different capacities and that in order to get their help he employed them as agents and wherever necessary he executed powers of attorney. He pointed out that the plaintiff was employed as an agent to look after the business of Modern Industries and that in order to facilitate the plaintiff to work on behalf of the former, a power of attorney was executed in favor of latter on July 30, 1956. He admitted that Mohan Lal was appointed as Administrative Officer of Jaswant Sugar Mills Ltd., Meerut but he explained that that was not on account of any family arrangement but was in personal capacity of the latter. He denied that Mohan Lal was representing or managing the interests and affairs of S. B. Sugar Mills Bijnore. He also denied that his son Jatender Lal was given rights of managing the affairs of Mohan Orchards Meeduwala. He asserted that it was be Who was looking after the affairs' of that Orchards. According to him his son Jatender Lal was a paid employee of H. U. F. to look after the affairs at. Meeduwala. He stated that Satender .Lal was looking after the clerical work of H. U. F. as paid employee. .

(8) He also raised preliminary objection to the effect that the suit wag not maintainable on account of non-joinder of other coparceners, that the same was not valued properly for the purpose of court and jurisdiction, that Delhi courts had no territory jurisdiction to try the suit because neither any cause of action arose within the territory of Delhi nor he was residing within such territory of Delhi and that the suit lor injunction was not maintained against him as Karta of HUF.

(9) Briefly grounds of review are as follows :

(A)I had held that the family arrangement set up by the plaintiff was; void on the ground of minority of calendar Lal and Satender Lal. That plea of said minority was never contained in the written statement of defendant No. 1 on account of which there was an error apparent in the judgment of this court. (b) Even if family arrangement was void on account of minority and on that account not binding on the said minor co-parceners, the same was binding on major coparceners including defendant No. 1. (c) Further minors had ratified family arrangement after they became majors?. (d) It was wrongly held by this court that there was patent defect in the suit on account of non joinder of the co-parceners Mohan Lal, Jatender Lal and Satender Lal. (e) The affidavits of Jatender Lal and Satender Lal placed on the record of this court during the pendency of the appeal were not considered. (f) It was plaintiff who opened and was operating upon account relating to Modern Industries in Central Bank of India Shahdra. Defendant No. 1 never operated upon that account. Hence on account of contract between plaintiff and defendant No. 2, latter could not stop operation of account by for Detailed contention of the learned counsel for the plaintiff and farther particulars of these grounds will be dealt with and discussed hereinafter.

(10) First contention of the learned counsel for the plaintiff is that defendant No. 1 never assailed the validity of the alleged family arrangement on the ground of minority of Jatinder Lal and Satinder Lal, that thereforee, it was wrong on the part of this court to have considered the said aspect and that hence there was error apparent on the face of the record justifying review. It is also contended that in this Court each of Jatender Lal and Satender Lal had filed an affidavit dated September 5, 1979 supporting the existence of family arrangement, that the said affidavits were not considered at all and that on that ground alone review of the judgment is required.

(11) In support of the proposition that there must be review when aforesaid grounds exist, reliance of the learned counsel for the plaintiff is on some authorities. First one is' of Madras High Court in Mahadeva Rayar vs. Sappani I.L.R. 1876 Mad 396, in which it was laid down as follows : -

'WHEREa Judge has, in deciding a case omitted to consider the effect of important documentary evidence filed with the plaint which was not taken issue upon, and which materially affects merits of the case, he is competent under Sections 376 to 378 of Act Viii of 1859 to grant a review and rehear the case.'

In Moran Mar Basselio Catholicos and another vs. Most Rev. Mar Poulose Atkanasius and others A. I. R. 1954 SC 526 following (which occurs in para 39 on page 545) was held :

'TOdecide against a party on matters' which do not come within the issues on which the parties went to trial clearly amounts to an error apparent on the face of the record. It is futile to speculate as to the effect these matters bad on the minds of the The aforesaid proposition of law was relied upon by the learned counsel for the plaintiff in support of his contention that in the present case inspire of the fact that no plea was raised by defendant No. 1 that the alleged family arrangement was void on account of minority of Jatender Lal and Satender Lal and that validity of the contract was never in issue, yet some was considered and decided by this court. Learned counsel also pointed out that the order of learned Additional District Judge under appeal contained issues on merits, that there was no issue in respect of the factum of minority of Jatender Lal and Satender Lal and effect of the same on the alleged family arrangement and that that being so this court had committed patent error in taking into consideration those facts. 12. The Supreme Court in the aforesaid judgment in para 34 at page 539 and 540 held that judgments of full bench of Travancore Cochin High Court were defective on the face of them in that they did not effectively deal with and determined an important issue in the case on which depended title of the plaintiff and maintainability of the suit and that was certainly an error apparent on the face of the record. The learned counsel relied upon that portion of the judgment also and argued that in the present case important documents in the shape of affidavits of Jatender Lal and Satender Lal were not considered and that, thereforee, there was an error apparent on the face of the record which necessitated review of the judgment of this court. Then reliance of the learned counsel is on two judgments of the Supreme Court in Raruha Singh v. Achal Singh & Others A.I.R. 1961 S.C. 1097 and in Siddu Venkappa Devadiga vs.SK Rangu C. Devadiya & Ors. 1977 (4) UJ 101 in which it was held that the appellate court should not make out a new case which was not pleaded by a party. Learned counsel for the plaintiff contended that in the present case minority of Jatender Lal and Satender Lal was not pleaded by defendant No. 1 in the written statement, that by way of relying upon that fact this court shall be making out a new case and that hence said factum could not be relied upon. Reliance is also on : AIR1960Cal270 in which following was held : 'If the provisions of law are waived in the course of a trial, they cannot afterwards be set up by way of objection to any step taken or about to be taken upon the footing of waiver.' 'If the defendant wanted to rely on the invalidity or insufficiency of the notice under S. 80 it was for him to raise a specific issue on this question.'

(12) The learned counsel for the plaintiff contended that in the present case non-plea of minority of Jatender Lal and Satender Lal in written statement amounted to waiver of that plea and that hence the same could not be basis of my judgment sough to be reviewed.

(13) For understanding context, for appreciating as to how alleged family arrangement was held to be void and for deciding contentions in that respect it is necessary to reproduce and go through paras 19 to 21 and relevant portion of para. 26 of this judgment of this court. They read as under :----

'THElearned counsel for the appellant containded that there was no prima facie case because firstly, as a matter of law there could not be any family arrangement for management of property for whole life as alleged by the plaintiff and that secondly, none was prima facie shown from any evidence. As far as, the first point is concerned, the learned counsel explained as follows. Plaintiffs accepts Modern Industries as a Joint Hindu Family property. He accepts that defendant No. 1 was Karta. It is well known concept of Hindu Law that the Karta has a legal right to manage all joint properties and if any junior member of the family has any grievance against the management of karta, his only right is to sue for partition of his share. It is also well settled that it is open to Karta in managing the properties to take help of other members of the family so long as he wishes. The only plea raised by the plaintiff is that karta lost the right to manage Modern Industries, on account of a family arrangement which is to last permanently till the life of the plaintiff. Such right to management is not permissible or authorised by law. In the present case, at the time when the family arrangement is alleged by the plaintiff to have been made Jatender Lal and Satender Lal were minors. Affidavit of Jateader Lal dated 14th December 1978 shows that be was 36 years of age on the date of the filing of the affidavit. That means that he was born sometime in 1942. In 1953-54, the alleged time of entering into family arrangement Jatender Lal was about 11 or 12 years old. He was, thereforee, minor. Similarly affidavit of Satender Lal dated December 14, 1978 shows that he was 32 years of age in 1978, which means th^t he was about 7 or 8 years old when the alleged family arrangement was arrived at. He was also thus minor.' (Para 20).

'THElearned counsel for the plaintiff relied upon some authorities for the purpose of showing that the family arrangement could be arrived at for the purpose of resolving present or future possible disputes or for keeping peace or harmony in the family. Those authorities are Maturi Puliaiah and another vs . Mathuri Narsimhan and others : AIR1966SC1836 , Kale and others vs. Deputy Director of Consolidation and others, Air 1976 S.C. 1807 and Ram Charan Das vs . Girja Nandini Devi and others, : [1965]3SCR841 . The aforesaid authorities related to family arrangement to the title of the property and not to an arrangement regarding right to manage a property by one of the junior coparceners during his entire life time to the exclusion of Karta.'

(Para 21).

'HOWEVER,the following was held in Union of India vs . Shree Ram Bohra and others : [1965]2SCR830 (relevant observations are in paragraph 14) : 'Two persons may look after the affairs of a joint Hindu family on the basis of the members of the joint Hindu family clothing with authority to represent the family. There would be two persons entitled to represent the family and their power to represent would depent on the terms of the authority conferred on them by the members of the joint Hindu family. Their authority to act for the family is not derived under any principle of Hindu law, but is based on the members of the Joint Hindu family coferring certain authority on them.'

The aforesaid authority of Supreme Court says that members of Joint family could give right to manage a property to any one by means of an agreement. But so that an agreement can be valid it must be in accordance with the Contract Act. According to Section 11 of the Indian Contract a person having attained majority can be a party to an agreement. thereforee, a contract by a minor is Void ab initio. In the present case Jatender Lal and Satender Lal being minors, agreement in the shape of family arrangement even if such an agreement did exist, was void and did not confer any authority on the plaintiff to manage Modem Industries. In M. N. Aryamurthi and another v. M. L. Subharaya Setty, : AIR1972SC1279 , it was held that when one of the signatories of a family settlement was a minor it was not a binding arrangement.' (Para 21).

'FURTHERthe discretion in the present case was not exercised according to law. There was a clear patent defect of two of the co-parceners, on account of minority being incapable of entering into any family arrangement. That fact was not taken into consideration by the learned lower court. It is apparent from the above that para 19 of the judgment contained contentions of the learned counsel for the defendant No. 1 and to the effect that both Jatender Lal and Satender Lal were minors being at the most 12 and 8 years of age respectively. In para 20 authorities of Supreme Court, relied upon by the learned counsel for the plaintiff, as to how a family arrangement could be legally arrived at were considered and it was held that those authorities related to family arrangement in respect of title to property and not to an arrangement regarding right to manage a property by one of the junior co-parceners That meant that it was found that on the basis' of those authorities it could not be held that there could be any family arrangement whereby a junior co-parcener could get right to manage a joint family property during his entire life time to the exclusion of Karta. That further meant that in the present case on the basis of said authorities it could not be held that a. family arrangement was legally possible.

(14) However, as mentioned in para 21 of the judgment an authority of the Supreme Court (relied upon by counsel for tile plaintiff) to the effect that members of joint hindu family could give right to manage property to any one co-parcener by means of an agreement was considered. thereforee, it had become necessary to determine if there could be any valid agreement in the present case so as to attract applicability of that Supreme Court authority. It was in that context that the 'factum of minority of Jatender Lal and Satender Lal not only became highly relevant but necessary to be considered. When it had to be determined if the proposition of law laid down by the Supreme Court could be applicable in the present case, admitted facts had to be considered notwithstanding that those admitted facts did not come specifically in the form of a Plea in written statement of defendant No. 1. It could not be possible to blindly hold that the said authority was applicable and helped the plaintiff in establishing that there could be family arrangement in respect of giving right to manage Modern Industries to the plaintiff. It became imperative duty of this court to find out if it could be possible according to law in the present set of circumstances that such right to manage could be given. The net result is that by relying upon aforesaid judgment of Supreme Court : [1965]2SCR830 plaintiff forced this court to determine if on facts appearing on record any agreement between co-parceners giving authority to plaintiff to manage Modern Industries could legally be arrived at. Ib that way this court was forced to determine the effect of aforesaid minority.

(15) Then reliance was placed by this court on the Supreme Court judgment : AIR1972SC1279 to the effect that there could not be any binding family arrangement when one of the signatories was a minor and it was held by this court that that was so irrespective of the fact whether the family arrangement was in respect of title or right to manage a property. It may be mentioned that the said authority was to the effect that although there could be a family arrangement with respect to title of some properties or property yet it was void if one of the signatories was minor. On that basis of judgment of Supreme Court it was held that family arrangement in the present case was void.

(16) Even if we forget about the aforesaid context I am of the opinion that there is hardly any ground for review. Plaintiff had alleged existence of family arrangement in his favor. Defendant No. 1 denied as to arriving at such a family arrangement. That denial meant that there was neither any family arrangement in fact or in law. In view of that stand of defendant No. 1 it was for the plaintiff to show not only factum but validity of the same. Validity included that all the co-parceners, who had entered into that family arrangement, were competent to do so and in all respects said family arrangement was strictly in accordance with law. It would have been a different matter had facfum of minority of Jatender Lal and Satender Lal not come on the record. But that is not so. Minority of Jatender Lal and Satender Lal was never denied at the time. of arguments during the pendency of appeal as well as review petition by counsel for the plaintiff. That fact was never denied in the review petition also. thereforee, that fact is admitted. When it is common ground between the parties that .Jatender Lal and Satender Lal were minors at the time of entering into aleged family arrangement, this court could not shut its eyes and refuse to .take into consideration admitted facts. It was not only necessary but also imperative duty of this court to take into consideration that fact and effect of the same on the validity of the alleged family arrangement. Validity of the agreement under the circumstances was clearly and patently in issue and there is hardly any ground for reviewing judgment.

(17) In view of what has been stated above none of the authorities relied upon by the learned counsel for the plaintiff has any application. In particular it may be mentioned that this court did not rely upon any new case which is prohibited, to be set up by the Supreme Court in Air 1961 S.C 1097 and 1977 UJ. 101. As already mentioned the very fact of replying on the existence of a family arrangement by the plaintiff. In the plaint envisages validity of the same and validity includes competency of all co-parceners to enter into alleged family arrangement. That is more so When it is admitted fact that at the time of alleged coming into existence of family arrangement Jatender Lal and Satender Lal were minors and it was only a question of law to be determined as to what the effect of that minority on the alleged family arrangement was Hence validity aforesaid of alleged family arrangement is neither outside pleadings of the parties nor means setting up of a new case for defendant No. 1 by this court.

(18) : AIR1960Cal270 has also no application in the present case. Here there is no question of waiver of ground of minority. When minority is admitted its effect, as already stated, is inherent in the issue of existence of alleged family arrangement.

(19) It is contended by the learned counsel for the plaintiff that the Supreme Court judgment : AIR1972SC1279 had no application in the present case and that the same had been wrongly relied upon by this court, which clearly amounted to an error apparent on the face of record justifying review. Learned counsel explains that the aforesaid judgment merely laid down that the document relied upon as family arrangement was a will, that the person who executed will had no authority to do so because the property sought to be bequeathed was ancestral and that thereforee, it had been wrongly held by this court that it was laid down in that judgment that family arrangement in that case was found to be void on account of one of the signatories being a minor.

(20) But if is apparent from a mere going through of the judgment that although Supreme Court held that the document involved in that case was a will yet in the alternative it was also held that even if said document were taken for granted as family arrangement same was not binding and was void because Dasratha Setty was a minor when he signed (Along with his brothers) on the said document in token of acceptance thereof. The fact that that aspect of that document as family arrangement was clearly and distinctly considered appears from the following portions of the judgment: -

'BOTHthe courts held that the properties in suit were the ancentral joint family properties which could not be disposed of by Lachiah Setty by will The courts also held that there was no family arrangement and even if it were to be deemed to be a family arrangement it was void, because one of the sons Dasaratha Setty who is supposed to have ac cepted that arrangement by signing below the will was a minor at the time.' (Portion of para 4) ...'Technical objections were also raised to the alleged family arrangement embodying En. Aa on the ground that one of the sons, M. L. Vasudeva Murthy, defendant No. 8 had just attained majority when he had signed the acceptance of the will and the other son, Dasaratha Setty who was then a minor, .had also signed the will. There is no evidence to show that Vasudeva Murthy who was a callow lad at the time, had independent advice when he had signed Along with his brothers; and, so far as the minor Dasaratha Setty is concerned, his signatures below the will has absolutely no value. Lachiah was the guardian of Dasaratha Setty at the time and, as pointed out in Subbarami Reddi vs. Ramamma (supra) the arrangement made in the will could not have been supported as against Dasaratha Setty on the ground that his father Lachiah was also a party to it. And when one of the sons of the family is shown to have not accepted or participated in the family arrangement, the family arrangement, as a binding agreement between the several co-parceners must fail (See Mohammed Amin vs. Vakil Ahmad. : [1952]1SCR1133 . 'We have dealt with all the points raised in the course of the arguments before us and, in our view the findings of the High Court are quite unexceptionable.' (Portion of para 18).

It is apparent from the portions reproduced above that it was held by the High Court as well as Court below that even if document were deemed to be a family arrangement it was void because one of the sons who is stated to have signed and accepted that arrangement was a minor at that time and that said finding of High Court was held by Supreme Court to be unexeptionable and correct.

(21) It is further contended by the learned counsel for the plaintiff that it appeared from perusal of para 12 (reproduced above) that if there as acceptance and participation by the minor after he attains majority even than family arrangement is binding. Learned counsel contended that in the present case, as was alleged by the plaintiff, Jatender Lal was given right to manage Mohan Orchards that he had been managing the said farm even after attaining majority, that thereforee, he had accepted and participated in the family arrangement. Learned counsel further contended that Satender Lal, according to the case of defendant No. 1 was working as a clerk of H.U.F., that clerical work also meant management and that thereforee, he also accepted and participated in the family arrangement.

(22) Matter as to whether there was any acceptance or participation in the alleged family arrangement, according to the case of the plaintiff or otherwise, will be seen hereinaffer when the matter of ratification of the alleged family arrangement will be gone into. It is suffice to say at this stage that the interpretation of the aforesaid Supreme Court judgment by the learned counsel for the plaintiff is totally wrong. The words acceptance and participation in para 12 as well in the remaining judgment were clearly with respect to the alleged acceptance of and participation in the will of Lachiah and treatment of the same as family arrangement at the time of execution of the will and not acceptance of the said document as family arrangement after the minor Dasaratha Setty attained majority. Under the circumstances contention of the learned counsel has no force.

(23) Learned counsel for the plaintiff then contended that even If it were taken for granted that family arrangement was not binding on Jatender Lal and Satender Lal, same was still binding on the persons who were major at the time of entering into alleged family arrangement. In support of that contention reliance is on Jamuna Bai Saheb Mohitai Avargal vs. Vasant Rao Anand Rao Dilybar Air 1916 PC 2, Daw Nyun and another v. Maung Nyi Pu Air 1938 Rang 359, Chuah Hooi Gnoh Neoh vs. Khav Sim Bee A.I.R. 1915 P.C. 45 Sheonandan Gope & another v. Shahdeo Khatik & others : AIR1940Pat671 , Sarju Prasad and another vs. Brijnarain Lal and others : AIR1957Pat121 and Sulochana and others vs. The Pandiyan Bank Ltd. another : AIR1975Mad70 .

(24) But none of the aforesaid authonties have any application in the present case. None of them related to any family arrangement. Air 1916 P.C. 2, : AIR1975Mad70 and Air 1938 Rang 358 were a thorities to the effect that the mere fact that minor could not be liable on a promissory note did not exonerate major executam. Facts in Air 1915 P.C. .45 were that some arbitrators were appointed on the basis of will who gave an award. Award was inter alias in favor of a minor who on becoming major dissipated property given by award and thereafter came up for setting aside of award. It was held that the minor was not entitled to get the award set aside on the doctrine of estoppel. In that case distribution of property, as is obvious from facts, wa.s by arbitrator. Such distribution was not on account of any agreement or a family arrangement. Further appointment of the arbitrator was on the basis of a will and not on the basis of any agreement of the minor. Minority effects validity of only an agreement. In : AIR1940Pat677 it was held that mere fact that a joint bond was not binding on a minor docs not obsolve major executants of any liability. In : AIR1957Pat121 it was held that any agreement for reference to arbitration with leave of court obtained under O.31 rule 7 Civil Procedure Code was binding on the persons other than the mirror. On the basis of sub-rule 2 of rule 7 of Order 32 Civil Procedure Code it was held that such an agreement of reference to arbitration was not void or nullity, but was void- able at the instance of the minor.

(25) There can be no manner of doubt that for completion of a family arrangement it is necessary that such and every co-parcener must be party to the said arrangement. Reason is that each and every co-parcener has interest and right in the joint Hindu Family Property and non-participation or incapacity of even one co-parcener can be fatal to existence of any family arrangement.

(26) Further it was authoritatively laid down by the Supreme Court in : AIR1972SC1279 and : [1952]1SCR1133 that a void family arrangement cannot fall against minor only and must fall as a whole. Following observations were made in para 15 :

'If the deed of settlement was thus void, it could not be void only and qua the minor plaintiff but would be void altogether qua all the parties including those who were sui juris. This position could not be and was not as a matter of fact contested before us.'

It is apparent from the aforesaid observations that that when family arrangement is void on account of minority of one of the parties it is void even against those also who were majors.

(27) The learned counsel for the plaintiff urged that in that case it was held that so that a family settlement could be void on the ground of minority of one of the participants, the minor should not have been represented by an incompetent guardian, that in the present case defendant No. I as guardian was competent to represent his minor sons in the arriving at of family arrangement and that hence the arrangement was perfectly valid. It is being held hereinafter that defendant No. I could not validly represent the minors. thereforee, the fact remains that family arrangement was void and thus in view of Supreme Court authority : [1952]1SCR1133 it was not binding on all the co-parceners including major ones.

(28) Learned counsel for the plaintiff relied upon a judgment of Privy Council in Sri Kakulam Subrahmanyam and another vs. Kurra Subha Rao . In that case a contract of sale was made by mother of a minor on behalf of latter as a guardian. It was held that the contract being for the benefit of the minor and within competence of the mother as a guardian was binding. If is contended that in the present case defendant No. I could have entered into alleged family arrangement as guardian of the minors, that the alleged family arrangement was for the benefit of the minors in as much as during the life time of a Karta they were not entitled to take part in the management of any of the properties because domain of management belonged to the Karta, that by way of family arrangement Jatender Lal was given right of management of Mohan Orchards and that thereforee, said family arrangement was binding.

(29) Reliance is also on : AIR1928All102 and : AIR1936Pat153 in support of the proposition that if a contract is made for the benefit of a minor, same is enforceable at the instance of the minor even though contract is void otherwise. Learned counsel contended that as in the present case family arrangement was for the benefit of the minors the same could be enforced by them and that thereforee, same could be relied upon by the plaintiff also.

(30) Reliance of learned counsel for the plaintiff further was on a judgment of Mysore High Court in Rukh-ul-mulk Syed Abdul Wajid and others vs. R. Vishwanathan and others A.I.R. 1950 Kar 33 in which following was held :

'WHENparties representing different branches of the family arrive at a settlement, such settlement cannot not be questioned either by them or by the persons who are represented by them even though they are minors, except in a suit properly instituted for that purpose within the time allowed by law. If after a bonafides settlement between the managers of a joint family the other members could be allowed to question the settlement without getting that settle ment set aside in a proper court there could be no finality to disputes.'

It is contended by the counsel for the plaintiff that in the present case defendant No. 1 as Karta could bind the minors and the family arrangement could not be avoided even by minors except in a suit for that purpose brought within limitation and that in any case defendant No. 1 had no right to question the validity of such an arrangement.

(31) There is no allegation of plaintiff in the pleadings that defendant No. 1 also entered into family arrangement present case defendant No. 1 could not be a competent guardian to enter into family arrangement on behalf of the minors for the simple reason that in case of such a family arrangement he as Karta was aperson who had a share competing with a minor co-parcener and he could not be motivated only by benefit of a minor which is the approach required of a guardian. Further if argument of learned counsel for the plaintiff is extended to its logical conclusion, it can lead to complete absurdity of reducing a family arrangement to one man show or a unilateral act of Karta. Karta representing all the co-parceners (including even major ones, on whose behalf he has a right to enter into an agreement-with outsiders) can take into his head to eater into a family arrangement with himself in his personal capacity. That means that he alone will bring into existence a family arrangement. That absurdity will be equally marked when Karta in his personal capacity enters into an agreement with himself in a representative capacity as guardian of a minor. Infact it is only with outsiders that Karta is authorised to enter Into agreement on behalf of minors and even on behalf of other co-parceners. Preposition of law laid down in Air 1950 Kar33 has no application in this case. In that case family arrangement was between brothers acting as heads and kartas of their respective families including the minor sons. Obviously in ..that case every head of different branch of family could enter into an agreement with head of other branch. That was not in a case of head of family entering into an agreement with himself in his capacities as individual and guardian of minor. In that case every one brother as head of his branch represent himself as individual and other coparceners and as guardian of minors' entered into an agreement with the other brother.

In any case there was no question of any benefit of family arrangement to the minors. Satender Lal, according to the case of the plaintiff himself did not get any right of management. It was stated in the plaint by the plaintiff that he could not be given such right on medical grounds. In para 8 of the replication reason advanced was that Satendar Lal was not considered to be a person of fully developed mind and thus was not considered to be capable of handling affairs of any of the units of H.U.F. According to defendant No. I, Satender Lal was employed as paid clerk by the H.U.F. But this part of the case of defendant No. I was denied in the replication. In any case even if it is taken for granted that he was given clerical work, the same obviously. does not confer any right to manage any of the business units of H.U.F.

(32) It is contended by the plaintiff that Jatendar Lal was given right to manage Mohan Orchards Learned counsel for defendant No. 1 argued (which argument was advanced during hearing of appeal as well as review application) that it was highly improbable and one had to stretch ones credulity to a breaking point to believe that minor of the age of not more than 12 years was entrusted with management of huge farm comprising of thousands of acres without any interference from other coparceners for the whole life. Said learned counsel described the entire case of the plaintiff as merely a 'cock and bull story'. However, I do not express any opinion in this respect because during the course of appeal I did not deal with factual aspect of the family arrangement and merely found the same to be void and of no legal binding effect, even if for the sake of argument it is taken for granted that such a family arrangement did come into existence. However, fact remains that Satender Lal even on the basis of the case of the plaintiff (as mentioned already) did not get any benefit.

(33) Hence none of the authorities aforesaid is applicable. Neither family arrangement, even on basis of allegations of plaintiff, was for the benefit of Satender Lal minor nor defendant No. I was competent to represent minors as guardian to enter into such an arrangement. In fact it is apparent from observations of the Supreme Court in para 12 (already reproduced) in : AIR1972SC1279 that father named Lachaib could not enter into a family arrangement on behalf of his minor son Dasaratha Setty.

(34) The learned counsel for the plaintiff contended that this court cannot now consider about the competency of defendant No. 1 as guardian of minors without first allowing review petition and rehearing of appeal because this matter does not figure in my judgment sought to be reviewed.

(35) To say the least, the argument has obviously no force. When a contention is being raised, its weight must be considered by court and now the court cannot merely say that its force must be considered when appeal is reheard after allowing review petition.

(36) Affidavits of Jatender Lal and Satender Lal each dated September 5, 1979 did not form part of the record. They were filed Along with an application under O.41 rule 27 Civil Procedure Code for allowing additional evidence in the form of those affidavits to be placed on record and read in evidence. That application came up for consideration only before Hon'ble Mr. Justice T. P. S. Chawla and thereafter in spite of the fact that application was never listed for consideration, plaintiff never pressed for its taking up for decision. Under these circumstances the application is obviously deemed to be given up and the affidavits could not be looked into. Even otherwise those affidavits are valueless. Before the trial court both Jatender Lal and Satender Lal filed separate affidavits dated 14th December 1978 which were against the plaintiff. Thereafter Jatender Lal filed an affidavit in favor of the plaintiff, but afterwards he filed another affidavit that he was made to drink by the plaintiff and in the state of intoxication latter obtained affidavit in favor of the latter, it was then in this court that two affidavits relied upon by the plaintiff now were filed. These affidavits are contradictory to the ones filed before the trial court and there is no reason to give preference to these affidavits. Under the circumstances not mentioning of these affidavits in the judgment does not furnish a ground for review when application to allow their being placed on record and read in evidence was never pressed and these affidavits are valueless. -

(37) Learned counsel for the plaintiff then contended that even if alleged family arrangement was void the same was ratified subsequently on attaining majority by Jatender Lal and Satender Lal, that the plaintiff had been managing Modern Industries for the last about 28 years and that it was for a large number of years that the management continued even after attaining majority of the aforesaid minors and that hence defendant No. 1 had no right to interfere in the said management.' Learned counsel pointed out that the matter of ratification was dealt with in the judgment but decision in respect of the same was erroneous on the face of the recard.

(38) is para 23 of the judgment sought t0 be reviewed it is mentioned that the learned counsel for the plaintiff relied upon a Supreme Court authority Air 1961 S.C. 797 which inter alias laid down that doctrine of ratification could be invoked against a presumptive reversioner, though not a party to transaction by a Hindu widow, by his assenting to the same with full knowledge of his rights and taking benefit under the same. Then the argument of the learned counsel is also mentioned in that para in the following words :

'LEARNEDcounsel for the plaintiff contended that in the present case Jatendter Lal and Satender Lal though minors at the time of entering into alleged oral family arrangement could be deemed to have rati fled the same by subsequent conduct after they became major when they allowed the plaintiff to con- tinue the business.'

Aforesaid contention of the learned, counsel was decided by making following-observations- which occur in para 25 of the judgment sought to be reviewed :

'THEfacts of the Supreme Court case A.I.R. 1961 S. C. 797 are totally distinguishable In that case reversioner, who was not a party to the agreement got benefit of the same and was given title to a property which is not the case here. Here Jatender and Satender after attaining majority could not be said to have got anything. Further Jatender Lal and Satender Lal, being minors, the alleged family arrangement was void ab-initio and it could not be validated or revived by the principle of ratification.'

Learned counsel for the plaintiff contended that it was wrongly stayed in the aforesaid observations that Jatender and Satender after attaining majority could not be said to have got anything. He explained that Jatender Lal was given, management of Mohan Orchards and that hence he got benefit under the alleged family arrangement which meant that he had ratified the same Learned counsel also contended that Satender Lal, as per case of defendant No. 1, got clerical job which is same thing as right to manage and that thereforee, he also got benefit. Learned counsel then relied upon a judgment in Bank of Bihar vs. Manohar Lal and others : [1964]1SCR842 to the effect that where statement appearing in judgment of the court is wrong remedy of the party aggrieved is by way of filing an application for review. Learned counsel argued that in the present case it was wrongly stated in the judgment sought to be reviewed that Satender Lal and Jatender Lal did not get 'anything' and that thereforee, plaintiff had a right to get the aforesaid judgment reviewed.

(39) Learned counsel also urged that it was an error on the part of the court to have expressed opinion that the alleged family arrangement could not be validated or revived by the principles of ratification. Learned counsel relied upon a Judgment of Supreme Court in Sahu Madho Das and others vs. Mukaad Ram and another 1955 S. C. 481 besides already relied upon judgment in A. I. R. 1961 S.C. 797.

(40) I had already mentioned in my judgment that in the present case alleged family arrangement even if it is presumed for the sake of argument only, although it is yet to be proved, that it was arrived at, was void ab-initio and could neither be validated nor revived nor made binding by the principle of ratification. That view of mine consists of two parts. First part is that an agreement with aminor is void. That proposition is supported by a judgment of Privy Council in Mohori Bibee and another vs. Dharmodas Gosh : AIR1972SC1279 (already referred to above) is that family arrangement having a minor as participant is void. Proposition that there cannot be ratification of a void agreement was laid down in Firm Bhola Ram Harbans Lal and another vs. Bhagat Ram and others A. I. R. 1927 Lah 24 and Chuahi Hooi Gnoh Neoh vs. Khaw Sim Bee 1915 S. C. 45. Following observations were made at page 25 of Air 1927 Lah 24 :

'......It is now setteled law that a minor's agreement is void, and what is void is obviously a nullity and has no existence in the eye of law. It would thereforee, be a contradiction in terms to say that a void contract can be ratified. ....' Relevant observations in Air 1915 P. C. 45 which read, 'there can of course be no ratification by infant after coming of age of the invalid power of attorney...'.

(41) The authorities of the Supreme Court relied upon by the learned counsel for the plaintiff have no application to the A facts of the present case. In those cases : AIR1955SC481 and A. I. R. 1961 S. C. 797 as it is apparent from a bare reading, that the transaction in res-pect of which doctrine of ratification was sought to be invoked were voidable and not void. There is huge difference between voidable and void transactions. Voidable transaction is one which can be avoided at the option of a person and that person may or may not exercise option of getting transaction avoided. That transaction exists as valid one till successfully avoided. A void transaction has no existence at all. It is nullity from the very start. It is just like a dead person who cannot be given life by any amount or number of injections of ratification. As against that voidable transaction is just like a living person who maintains and enjoys life till that life is successfully extinguished by another person at whose instance aforesaid life is 'voidable'. Person at whose option transaction is voidable may either not choose to get the transaction avoided at all or he can do a positive act of ratification.

(42) Further it was rightly stated by me that Jatender Lal and Satender Lal after attaining majority could not be said to have got anything. Firstly that statement, having reference to the context, referred to getting benefit of title of a property. Context is mentioned in the sentence previous to the aforesaid statement which says that reversioner got benefit of the agreement and was given title to a property which is not the case here. Admittedly Jatender Lal and Satender Lal did not get any title to. the property by way of alleged family arrangement. Secondly, even if we forget about the aforesaid context, according to the case of the plaintiff himself, Satender Lal never got anything on account of alleged family arrangement. This has already been mentioned in detail with reference to the assertion of the plaintiff in the plaint and replication. There is no doubt that it was case of the defendant No. I that Satender Lal was given job of a clerk of H. U. F but that assertion of defendant No. 1 was denied by the plaintiff in replication and hence cannot be relied upon by the plaintiff. But inspire of that, even if plain tiff is allowed to rely upon that assertion of defondant No. 1, that does not show. any getting of right of management by Satender Lal because clerical job obviously does not confer any right of management of any business or any part thereof.

(43) Learned counsel for the plaintiff also described as error apparent on the face of record my following view in the judgment sought to be reviewed :

'THENthere is also another defect that all the co-parceners were not made party to the suit when it is being alleged by the plaintiff that they were parties to the family arrangement. In the absence of those coparceners namely, Mohan Lal, Jatender Lal and Satender Lal the suit cannot be completely and effectually decided. Without prejudice to the decision of the case on merits, it was wrongly remarked by the learned lower court that the said co-parceners were represented by defendant No. 1 while actually defendant No. I could not represent them when it is being alleged that those co-parceners had independently in their own right entered into the family arrangement.'

Learned counsel contended that in the present case Mohan Lal, Satender Lal and Jatender Lal were not necessary parties at all on two grounds; firstly because they could be represented by defendant No. 1 as Karta and secondly because no relief was claimed against them. He explains that it is cardinal principle of Hindu law that there is no necessity of joining of the co-parceners in a suit and that Karta can represent every co-parcener. In support of that proposition reliance is on the following observations in : [1961]3SCR896 :

'INa suit by manager of a joint Hindu family for enforcement of a mortgage, an adult member, who is interested in the mortgage security; is not a necessary party though he can be joined as a proper party; and failure to join a person who is a proper but not a necessary party does not affect the maintainability of the suit nor does it invite the application of S. 22 Limitation Act-'

Learned counsel also relied upon following commentary in para 251 at page 313 of Hindu Law by Mulla Fourteenth Edition.

'PARTIESto suits (1) Where the manager of a joint family, having power to do so enters into a transaction in his own name on behalf of the family, whether it be a contract or a mortgage or a sale, he may sue or be sued alone in respect of that transaction. Where the mortgage by the manager extends to the entire interest of the family and is not confined to the manager's share he must be deemed to have acted in the transaction on behalf of the family. The other coparceners are not necessary parties to a suit on such a mortgage, as they are effectually represented by him and are bound by the decrees in the suit. But a member who contends that the action of the manager was beyond his powers is not properly represented by the Manager and ought to be joined as a party if he wishes.....'

(44) The fact as to whether a party is necessary or not is to be decided on the basis of allegations of a plaintiff. In the present case allegations of the plaintiff are that there was a family arrangement whereby every one of the coparceners' got a separate right of management of a separate unit of business of H. U. F. and Karta defendant No. 1 did not have any right to interfere in the management of Modem Industries. On the basis of aforesaid assertion of the plaintiff, defendant No. 1 Karta had no right to interfere in the management by any of the coparceners with respect to the unit of business allocated to such coparcener. That being the stand taken by the plaintiff, how can it be said that Karta defendant No. I still retained right to represent other coparceners. Karta defendant No. 1 can, thereforee, represent coparceners only when there is no allegation of the plaintiff with respect to the arriving at of the family arrangement. It is a contradiction in terms on the part of the plaintiff that on one hand he alleges that there was separation of management of different units of H. U. F. business without any right of the Karta to interfere in that management during life time of the coparceners concerned yet on the other hand he contends that he (Karta) is entitled to represent said coparceners and thus interfere in their management, by taking stands in the, court on their behalf. Taking of stand by defendant No. 1 that no part of management was given to any coparcener is obviously denial of their rights under alleged family arrangement. In case it is taken for granted on the basis of allegations of the plaintiff himself that defendant No. 1 has still right as Karta to represent all the coparceners who include plaintiff, then certainly even according to the allegations of the plaintiff himself, latter has right to manage as well as interfere in the management of Modern Industries.

(45) Proposition of law given in the Supreme Court authority relied upon by the plaintiff and the Hindu Law by Mulla was never on the basis that a family arrangement had been set up by the plaintiff. That was only when there was no allegation of family arrangement at all and the business of H. U. F. was being carried on in the normal circumstances and there was dispute between Joint Hindu Family on one hand and third persons on the others an there was no dispute between coparceners inter se in respect of validity or existence of a family arrangement-

(46) In Kaka Singh vs. Rohi Singh & Others A. I. R. 1978 P & H 30 (which was also relied upon by the learned counsel for the plaintiff) it was held as follows :

'INBanarsi Dass vs. Panna Lal Sarkaria J (now an Hon'ble Judge of Supreme Court) took the view that the powers given to the High Court under sub rule 2 of R. 10 of O.I of the Code are confined only to two cases, namely, when a party ought to have been joined as a party that i&, when he is a necessary party and (2) when without the presence of the applicant the questions in the suit cannot be completely decided.'.

In the present case main issue involved is whether there was a valid and binding family arrangement as' alleged by the plaintiff. That is a controversy which vitally effects rights and interests of all the coparceners including the ones who have not been imp leaded as parties. The said coparceners, namely, Mohan Lal, Satender Lal and Jatender Lal also got rights under the alleged family arrangement and thereforee, no adjudication about the said arrangement can be made in their absence. It is thereforee, clear that the suit cannot be decided without presence of said coparceners. Hence said coparceners ought to have been joined within the meaning .of the first circumstance mentioned in the aforesaid authority and without their presence, as mentioned in the second circumstance, questions in the suit cannot be completely decided.

(47) It is true that in the present case plaintiff does not seek any relief against Mohan Lal, Satender Lal and Jatender Lal. It is also true that plaintiff does not allege existence of any grievance of interference in the management of Modern Industries. But that fact is not the only determining factor for finding out necessary parties Validity and existence of the family arrangement is in issue and that concerns all the coparceners. Such an issue cannot be decided without their presence and hence they are necessary parties who ought to have been joined as defendants.

(48) Contention of the learned counsel for the plaintiff then is that even if it were taken for granted that Mohan Lal, Jatender Lal and Satender Lal were necessary parties their non-joinder was not fatal to the suit and that hence admittedly injunction could not be refused on -account of their non-joinder. Learned counsel argued that in view of the provisions of Order 1 rule 10 Civil Procedure Code aforesaid copercemers could be directed by the court to be joined as defendants' or direction could be given to the plaintiff to implead them as defendants and that it was only if directions were disobeyed that the suit could be dismissed and injunction refused.

(49) There is no doubt that the proper procedure, when there is non-joinder of parties, is to call upon the plaintiff to implead these parties as defendants and suit can be dismissed only in the event of disobedience of the plaintiff.. But in the present case my observations' aforesaid do not say that the suit should be dismissed. Only thing pointed out by me was that there was patent defect on account of non-joinder of necessary parties. That meant that the suit itself was not maintainable as constituted. That being so it was implied in the order that there could not be any injunction against defendant No. I unless there was duly constituted suit.

(50) Next contention of the learned counsel for the plaintiff is that even if there was no family arrangement, plaintiff was entitled to injunction restraining defendant No. 2 from stopping of the bank accounts because admittedly it is the plaintiff who had been operating said accounts for 28 years from the very start since 1953 and as such defendant No. 2 was under a contractual obligation not to stop operation of the same at the request and instance of defendant No. 1 who was an outsider to contract.

(51) Reply of learned counsel for defendant No. 1 was that argument of counsel for the plaintiff did not take into consideration admitted fact that account with defendant No. 2 was of H. U. F. and that thereforee, plaintiff had no right to deal with any asset of H. U. F. including bank account without authority from Karta. According to learned counsel for defendant No.1 it was perfectly legal on the part of the bank to have done whatever karta wanted.

(52) Prima facie (without prejudice to the ultimate decision on merits) there is force in the contention of the counsel for defendant No. 1 and plaintiff is not entitled to invoke discretion of the court for compelling the bank by an injunction order for allowing the plaintiff to continue operation of account or accounts of H. U. F. Even otherwise this aspect of contractual right was not the basis of judgment of lower court and was not argued at the time of hearing of appeal before-this court. That is why this ground for seeking review did not find place in the original review application dated May 5, 1981 and was introduced by way of moving on May 27, 1981 an application for amendment of review petition. Hence absence of this aspect in the judgment cannot furnish any ground for review.

(53) Learned counsel for the plaintiff contends that vacating of injunction granted by lower court will amotint to ruining the business of Modern Industries without any benefit to the defendant No. 1. He explains that defendant No. 2 might stop operation of the accoonts of Modern Industries which will bring the entire business to grinding halt thereby throwing about 800 employees oat of employment, disabling of the plaintiff from performance of contracts of supplying wagons and creating on account of breaches of contracts huge liabilities running into crores of rupees or so which would certainly mean fatal blow to the aforesaid business. He further explains that vacating of injunction will not benefit defendant No. 1 at all because latter cannot get possession of 'Modem Industries' and may not get funds from bank so as to enable him to manage business.

(54) Learned counsel for defendant No. 1, however, contend that all the aforesaid alleged likely hardships are only imaginary because only thing to be done would be to change management of the plaintiff to defendant No. 1 and defendant No. 1 could look after the entire business very ably.

(55) I do not comment upon the aforesaid contentions of the learned counsel. They pertain to the 'balance of convenience' which was not considered at the time of hearing of appeal because I found that the plaintiff had no prima facie case and on that account he was not entitled to any injunction. I still hold the same view and find that there is no justification for review.

(56) Learned counsel for defendant No. 2 contends that the bank wants to steer clear of the litigation between plaintiff and defendant No. I but at the same time it is very been to bring on record some facts for some directions to be made by the court. He pointed out as follows. It was the plaintiff who was giving personal guarantees for the payment of cash credit and over draft accounts' etc. Defendant No. I never came into picture so far as dealings with the bank were concerned. Conduct of the plaintiff with the bank was very clean, cooperative and businessman like. The bank had every faith in the dealings with the plaintiff. The learned counsel on the basis' of above facts requests that it may be made clear that it is open to the bank at its choice to continue dealings with the plaintiff or to stop further transactions' and cease to deal with any of the plaintiff or defendant No. 1. Learned counsel further points out that the bank had very huge stake of about Rupees one crore and that it is necessary for the bank for safeguarding its interests to have choice as to with which management of Modern Industries it should deal and to take steps that its money invested in the business of Modern Industries is safe. He adds that worth of plaintiff is already tested but worth and ability of defendant No. I is not known.

(57) Dr. L. M. Singhvi, Advocate for the plaintiff supports request of the bank. He points out that admittedly it was plaintiff who was managing Modem Industries for the last 28 years', that it was he and not defendant No. I who was carrying on the said business, that the bank should have a choice to decide if it wanted to continue to deal with the plaintiff and that hence it must be clarified that the bank is free to act as it likes. He further points out that contracts worth crores of rupees are pending performance, that possession still remains with the plain tiff and that bank can very well deal with the plaintiff and can refuse to act upon instructions of defendant No. 1.

(58) Shri Shanti Bhushan, Advocate for defendant No. 1 opposed issue of any direction as desired by the bank. He explained that if a direction were issued that the bank was at liberty to do whatever it liked it could be interpreted that the bank had been permitted by this court to do anything it liked even against rights of defendant No. 1. He had however, stated that it was clear that there was no injunction or restraint order against bank and that court had not prevented bank from taking any action.

(59) This matter never came up for consideration at the time of hearing of the appeal. thereforee, I did not mention the same in my judgment. I refrain from expressing any opinion on the aforesaid points. I also refrain from opining as to what rights of defendant No. 2 are. However, one thing is clear that by way of accepting appeal and vacating injunction issued by the lower court, I neither issued any injunction nor any restraint order against the plaintiff or against the Central Bank of India, defendant No. 2, and said bank is at liberty to conduct or carry on its dealings according to law, and this court does not come into picture at all.

(60) With the above observations I do not find any force in the review petition and dismiss the same.


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